Citation Nr: 9915818
Decision Date: 06/08/99 Archive Date: 06/21/99
DOCKET NO. 96-20 534 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Reno,
Nevada
THE ISSUE
Entitlement to a disability evaluation in excess of
10 percent for shell fragment wounds of the left shoulder and
left upper back, with scars.
WITNESS AT HEARINGS ON APPEAL
Appellant and Appellant's psychologist
ATTORNEY FOR THE BOARD
C. Crawford, Associate Counsel
INTRODUCTION
The veteran served on active duty from January 1943 to August
1945.
This case was previously before the Board of Veterans'
Appeals (Board) in February 1998, at which time the issue of
entitlement to an increased evaluation for post-traumatic
stress disorder with a schizoaffective disorder was granted
and the issue of entitlement to a disability evaluation in
excess of 10 percent for shell fragment wounds of the left
shoulder and left upper back, with scars, was remanded. The
appropriate development was undertaken by the regional office
(RO), and the case is again before the Board for appellate
disposition.
In a June 1995 statement, the veteran stated that he had
developed arthritis of the left shoulder where his shell
fragment wounds were located. Review of the record shows
that this matter has not been adjudicated. Additionally, in
a March 1998 statement, the veteran requested compensation
for shell fragment wounds embedded in the head. A review of
the claims file shows that a February 1947 rating action
granted a noncompensable evaluation for multiple minute
metallic foreign bodies in the subcutaneous soft structures
of the left side of the skull and face. These matters, which
are not inextricably intertwined with the issue on appeal,
are referred to the RO for appropriate action.
FINDINGS OF FACT
1. All available relevant evidence necessary for an
equitable disposition of the appeal has been obtained by the
RO.
2. The veteran's shell fragment scarring of the left
shoulder and left upper back involves tenderness and pain.
3. There is no functional impairment, including muscular,
neurologic, or otherwise, as a result of the veteran's
scarring of the left shoulder and left upper back.
CONCLUSION OF LAW
The criteria for a disability evaluation in excess of
10 percent for shell fragment wounds of the left shoulder and
left upper back, with scars have not been met. 38 U.S.C.A.
§§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.10, 4.14,
4.40, 4.59, 4.118, Diagnostic Code 7804 (1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
In general, an allegation of increased disability is
sufficient to establish a well-grounded claim seeking an
increased rating. Proscelle v. Derwinski, 2 Vet. App. 629
(1992). The Board finds that the facts relevant to the issue
on appeal have been properly developed and that the statutory
obligation of the Department of Veterans Affairs (VA) to
assist the veteran in the development of his claim has been
satisfied. 38 U.S.C.A. § 5107(a).
As a preliminary matter, the Board notes that the veteran was
afforded a hearing before Traveling Members of the Board in
August 1990. The Board has attempted to locate the
transcript and/or tape recording of the hearing, but has been
unsuccessful. A Board decision was issued in January 1991,
following the decision. Since that time, additional medical
evidence has been associated with the claims file. In August
1996, the veteran testified before a Hearing Officer. In
August 1997, the veteran was afforded a hearing before a
Member of the Board. Additionally, in February 1998, the
Board remanded the matter to obtain additional evidence. In
light of the Board's disposition below, it is clear the
veteran has not been prejudiced by the absence of the lost
transcript.
I. Factual Background
Service medical records of September 1944 show that the
veteran was treated for multiple wounds of the left shoulder.
All wounds were debrided. The veteran was hospitalized in
October 1944, and the wounds were described as multiple and
penetrating the left thorax, 6 in number of moderate
severity, due to enemy action, and as a result of artillery
shell, afoot, shell fragments. The additional diagnosis was
secondary closure of wounds. X-rays demonstrated no pleural
involvement or fracture of the left scapula; there were many
small and medium-sized foreign bodies in the soft tissue
posteriorly in the region of both shoulders and upper portion
of the chest. The veteran was awarded the Purple Heart medal
for the wounds.
A service X-ray in July 1945 revealed multiple metallic
fragments, the largest being 1/2 centimeter in diameter, in the
soft tissues of the shoulder and in the projection of the
upper chest. Service medical records of February 1945
indicated that there were no neurological abnormalities on
examination. Neurological examination in August 1945 was
also essentially normal.
A September 1945 rating decision granted a 10 percent
evaluation for shell fragment wounds of the left shoulder and
chest.
The veteran was afforded a VA examination in October 1946 for
multiple scars on the left shoulder and back. On
neuropsychiatric examination, the impression was that the
veteran was neurologically negative. On surgical
consultation, the veteran's chief complaint was of shell
fragment wounds of the left shoulder and left chest. At the
time of the examination, the veteran had some pain in the
shoulder which was mild and nondisabling. Physical
examination disclosed 8 scars over the left shoulder and left
scapular region that were all well healed. One of the scars
in the suprascapular region showed evidence of soft tissue
deject. There was no limitation of motion or abnormality
except for scars in the left shoulder region. No evidence of
instability was present. The impression was residuals of
shrapnel wounds of the left shoulder, mild and slightly
symptomatic.
As of VA orthopedic examination of November 1947, there were
multiple scars of various sizes, one being 11/2 inches in
diameter, and depression of the left shoulder and upper left
back. The left shoulder had full range of motion. The
pertinent diagnosis was shell fragment wound of the left
shoulder, upper left back, with healed multiple scars,
nondisabling.
The 10 percent rating was continued for shell fragment wound
scars of the left shoulder and upper left back under
Diagnostic Code 7803 by rating action of February 1947.
When the veteran was hospitalized at a VA facility in April
1948, examination revealed some crepitus of the left shoulder
joint with motion without loss of motion or strength.
Reflexes were equal and active but the grip of the left hand
was somewhat week. Numerous small foreign bodies in the
region of the left clavicle, secondary to bomb fragment
wounds, were noted to be unchanged. On VA examination of
February 1949, the examiner concluded that there was no
permanent deformity or disability observed relative to the
left shoulder shell fragment wounds, except for several well-
healed scars on the left should proximal to the scapula
ranging from 1/4 to 2-inches in diameter. In June 1949, VA
physical examination revealed that all wounds of the left
shoulder region and posterior thoracic area were well healed.
There was no loss of motion due to shell fragment wounds, no
atrophy, no hyperesthesia or paralysis. Any complaints were
considered psychosomatic.
VA progress notes of January 1952 show that there was normal
shoulder motion and cutaneous sensation. The impression was
that the scars from the shrapnel wounds were probably
symptomatic at times. During VA examination of May 1952, it
was noted that the veteran was left-handed and that there
were multiple healed scars on the back and left shoulder.
The examiner noted that there was no muscle disability and no
limitation of motion. The diagnosis was gunshot wound of
left shoulder and back, healed. In August 1954, the VA
examiner found that there had been no change from previous
examinations.
In September 1954, the 10 percent evaluation was confirmed
and continued under Diagnostic Code 7804. That rating
remains in effect.
A VA hospital summary dated from December 1961 to January
1961 shows that the veteran had wounds of the left shoulder,
left scapula area and left back, but no paravertebral muscle
spasm was present on examination.
VA musculoskeletal examination in February 1978 revealed a
healed scar of the posterior area and multiple scars of the
left upper dorsal chest area. Range of motion was normal.
X-ray findings revealed metallic foreign body of the left
upper lung field and left shoulder girdle. The diagnosis was
shell fragment wound of left shoulder and left upper back.
At his personal hearing in September 1978, the veteran
testified that he lost time from work as a result of his
service-connected disabilities. Hearing Transcript (T.) at
page 2. He also stated although left-handed, he did not have
loss of motion of his left hand or shoulder. T. at 10. He
had difficulty with grabbing or hanging onto items. His hand
was weak and fatigued easily. Id. The veteran also
testified that he did not take medication, but he
participated in physical therapy. T. at 11-12.
An October 1978 VA examination report shows that the veteran
complained of recurring shoulder and back pain that
interfered with sleeping and caused discomfort. VA
outpatient treatment reports dated from September 1983 to
November 1987 show that in January 1987, the veteran
complained of constant left shoulder pain and that objective
evaluation revealed multiple shrapnel scars over the left
side with full range of motion and without atrophy. The
assessment was pain secondary to shrapnel. The reports show
treatment for left shoulder pain in November 1987 as well.
Reports of x-ray studies accomplished in May 1988 reveal
multiple small metallic fragments of the left clavicle,
especially of the infraclavicular region, anteriorly at the
sternoclavicular articulation, and in the soft tissues of the
upper arm. Evidence of dislocation was not demonstrated.
VA examination in September 1988 specifies that at that time
the veteran was being evaluated for shell fragment wounds of
the left shoulder and upper back with multiple scars.
Examination revealed six irregular scars on the anterior and
posterior aspect of the (left) shoulder involving primarily
the trapezius muscle with evidence of muscle defect, soft
tissue loss, and adherence of the overlying scar tissue to
the muscle. The veteran however carried the shoulder at the
normal angle and elevation. Elevation was to 160 degrees
with abduction to 150 degrees, internal rotation to 80
degrees, and external rotation to 60 degrees. Weakness on
resisting shoulder shrug when compared to the right was
noted. The veteran could place the left hand behind his head
and lumbosacral area and could perform a throwing motion.
The impressions were history of shell fragment wound to area
of left shoulder with multiple scars, confirmed on
examination; loss of muscle tissue in Muscle Group I with
residual weakness; and limitation of motion about left
shoulder.
VA outpatient treatment reports dated from October 1990 to
May 1995 show in April 1994 the veteran complained of pain of
the left shoulder with feelings of coldness and shaking of
the left hand. At that time, clinical findings revealed
multiple scars of the back with no apparent abnormalities of
the left shoulder. Range of motion was full and no
neurological deficits of the upper extremity were noted.
Radiographic reports dated in November 1993 and April 1994
are also of record. The reports, inter alia, show scattered
metallic particles at the base of the skull, left side of the
neck, and left anterior chest wall.
An August 1995 medical statement from B.E.L., M.D., of
Southwest Medical Associates Incorporated, shows that the
veteran complained of pain and a tremor. The doctor noted
that the veteran had a persistent tremor of the hands, which
appeared to be an attention tremor and also appeared to be a
tremor of age. The veteran however worked with his hands and
the tremor seemed to abate itself.
During VA examination of the muscles and joints in September
1995, the veteran complained of pain of the left shoulder and
sternoclavicular and a tremor of the upper extremity.
Objective findings showed muscle defects of the left
trapezius muscle with five areas of scarring and muscle
tissue beneath the scars. On specific evaluation, scarring
of the left trapezius measuring between .5 and 4-centimeters
was noted. Findings also showed mild tenderness to
palpation, adhesive to underlying tissue, and pain over the
sternum and clavicular joint. The joint and sternoclavicular
were enlarged and painful and a deformed and tender scar
overlying the costosternal rib #4 was present. Nevertheless,
range of motion was normal, as flexion and abduction were to
180 degrees, respectively, with extension to 40 degrees and
internal and external rotation to 90 degrees, respectively.
Strength was normal, no damage to tendons was demonstrated,
and no evidence of muscle hernia was present. The
impressions on muscle examination were shell fragment wound
and gunshot wounds of the left shoulder, anteriorly and
posteriorly; and osteoarthritis of left sternoclavicular
joint of 4th costochondral articulation. The impression on
examination of the joints was normal left shoulder joint.
At his personal hearing in August 1996 before a hearing
officer, the veteran testified that he could stretch out his
arms and lift it above his shoulder. The veteran also stated
that he experienced pain of the arm after sleeping on it.
At his August 1997 hearing before a Member of the Board, the
veteran testified that he lived with pain. T. at 3. He also
stated that he was left-handed but he could not write
anymore. He had tremors of the body. T. at 4.
VA outpatient treatment report dated from November 1993 to
November 1998 contain a July 1995 radiology report showing no
evidence of bone or joint abnormality but reflecting small
shrapnel about the left clavicle and left upper lung area.
The clinical reports show that the veteran received treatment
for complaints of pain of the left shoulder in April 1998.
At that time, the veteran stated that he had experienced pain
since the day before and had difficulty lifting his arm. The
veteran denied incurring any trauma but stated after getting
out of bed, he could not lift his arm. The assessment was
complaints of left arm pain.
Complaints of pain were also documented on VA examination in
October 1998. Objective evaluation revealed seven scars of
the back of the neck and upper shoulders and one on the
anterior shoulder of the left. The scars were not tender but
two were depressed. Evidence of muscle atrophy was not seen,
except around the small depression of the two wounds. The
examiner noted as best as he could ascertain, the veteran's
strength was good of the left upper extremity. Flexion was
to 178 degrees with abduction to 180 degrees and extension to
65 degrees. The veteran "internally rotated to T12" and
"externally rotated to 48 degrees." Atrophy of the deltoid
was not seen and good strength on abduction with resistance
of the deltoid was noted. X-ray findings revealed no acute
fracture or dislocation. The left humeral head was
appropriately seated within the glenoid fossa. Numerous
metallic fragments were present within the overlying
surrounding soft tissues. The impression was multiple
fragment wounds to the thoracic spine and neck with no
neurological loss and with minimal muscular loss.
After examination, the examiner stated that the muscle groups
involved were the para-cervical muscles of the left, probably
the trapezius, the paraspinalis muscles on the left, and the
thoracic spine. He could not discern which precise muscles.
The examiner also stated as far as he could see there were no
complications with these wounds. No evidence of infection,
old or new, was present and with respect to weakened motion,
fatigability and incoordination, those symptoms were not
demonstrated. Also any soft tissue loss present was so
minimal that it could not be quantitated. Regarding the
veteran's complaints of pain, the examiner stated no doubt
some minor amount of discomfort may be present but there were
no objective manifestations to demonstrate this. The veteran
was very robust and demonstrative. The examiner then
concluded the veteran incurred fragment wounds over 54 years
before and they have been stable over 53 years. They also
caused no significant impairment. The veteran's ability to
perform average employment was normal, keeping in mind that
he is 78 years old.
After reviewing the foregoing evidence, in January 1999, the
RO confirmed and continued the assigned 10 percent
evaluation.
II. Pertinent Law and Regulations
Disability evaluations are determined by the application of a
schedule of ratings, which is based on the average impairment
of earning capacity. Separate diagnostic codes identify the
various disabilities. 38 U.S.C.A. § 1155 (West 1991);
38 C.F.R. Part 4 (1998). In determining the disability
evaluation, the VA must acknowledge and consider all
regulations which are potentially applicable based upon the
assertions and issues raised in the record and explain the
reasons and bases used to support its conclusion. Schafrath
v. Derwinski, 1 Vet. App. 589 (1991).
Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, the present level of disability is of primary concern.
Although a rating specialist is directed to review the
recorded history of a disability in order to make a more
accurate evaluation, the regulations do not give past medical
reports precedence over current findings. See 38 C.F.R.
§ 4.2 (1998); Francisco v. Brown, 7 Vet. App. 55 (1994).
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7.
Disability of the musculoskeletal system is the inability to
perform normal working movement with normal excursion,
strength, speed, coordination, and endurance, and that
weakness is as important as limitation of motion, and that a
part which becomes disabled on use must be regarded as
seriously disabled. However, a little-used part of the
musculoskeletal system may be expected to show evidence of
disuse, through atrophy, for example. 38 C.F.R. § 4.40. The
provisions of 38 C.F.R. § 4.45 and 4.59 contemplate inquiry
into whether there is crepitation, limitation of motion,
weakness, excess fatigability, incoordination, and impaired
ability to execute skilled movements smoothly, and pain on
movement, swelling, deformity, or atrophy of disuse.
Instability of station, disturbance of locomotion, and
interference with sitting, standing, and weight-bearing are
also related considerations. It is the intention of the
rating schedule to recognize actually painful, unstable, or
mal-aligned joints, due to healed injury, as at least
minimally compensable. Id.
In DeLuca v. Brown, 8 Vet. App. 202 (1995), the United States
Court of Appeals for Veterans Claims (known as the United
States Court of Veterans Appeals prior to March 1, 1999)
(hereinafter referred to as the Court) held that where
evaluation is based on limitation of motion, the question of
whether pain and functional loss are additionally disabling
must be considered. See 38 C.F.R. §§ 4.40, 4.45, 4.59.
The Rating Schedule provides that scars, other than
disfiguring head, neck, or facial scars, or residuals of 2nd
or 3rd degree burns, are rated based on healing,
symptomatology, or on impairment of function of the part
affected. A 10 percent rating is warranted for a scar which
is poorly nourished with repeated ulceration, or which is
tender and painful on objective demonstration.
38 C.F.R. § 4.118, Diagnostic Codes 7803, 7804, 7805 (1998).
Diagnostic codes involving the shoulder of the major
extremity require associated malunion of the clavicle or
scapula for a 10 percent evaluation, or associated malunion
of the humerus causing moderate deformity, or limitation of
motion of the arm at the shoulder level, for a 20 percent
evaluation. 38 C.F.R. § 4.71a, Diagnostic Codes 5201, 5202,
5203 (1998).
Normal shoulder motion includes a range of motion of forward
elevation (flexion) and abduction from 0 degrees to 180
degrees. Normal internal rotation and external rotation
range from 0 degrees to 90 degrees. 38 C.F.R. § 4.71, Plate
I (1998).
The Court has held that where the law or regulation changes
after the claim has been filed, but before the administrative
or judicial process has been concluded, the version most
favorable to the veteran applies unless Congress provided
otherwise or permitted the VA Secretary to do otherwise and
the Secretary did so. Karnas v. Derwinski, 1 Vet. App. 308
(1991).
Evaluations of muscle disabilities from shell fragment wounds
are categorized as mild, moderate, moderately severe and/or
severe consistent with factors set out in 38 C.F.R. § 4.56
(1998). The rating criteria for muscle group injuries were
changed, effective July 3, 1997. 62 Fed.Reg. No. 106, 30235-
30240 (June 3, 1997) (codified at 38 C.F.R. §§ 4.55-4.73
Diagnostic Codes 5301-5329; 38 C.F.R. §§ 4.47-4.54, 4.72 were
removed and reserved). The defined purposes of these changes
were to incorporate updates in medical terminology, advances
in medical science, and to clarify ambiguous criteria. The
comments also clarify that these were not intended as
substantive changes. See 62 Fed.Reg. No. 106, 30235-30237.
As revised, 38 C.F.R. § 4.56 provides, in pertinent part,
that the cardinal signs and symptoms of muscle disability are
loss of power, weakness, lowered threshold of fatigue,
fatigue-pain, impairment of coordination and uncertainty of
movement. 38 C.F.R. § 4.56(c). The levels of disabilities
are defined as follows:
(1) Slight disability of muscles. (i)
Type of injury. Simple wound of muscle
without debridement or infection. (ii)
History and complaint. Service
department record of superficial wound
with brief treatment and return to duty.
Healing with good functional results. No
cardinal signs or symptoms of muscle
disability as defined in paragraph (c) of
this section. (iii) Objective findings.
Minimal scar. No evidence of fascial
defect, atrophy, or impaired tonus. No
impairment of function or metallic
fragments retained in muscle tissue.
(2) Moderate disability of muscles. (i)
Type of injury. Through and through or
deep penetrating wound of short track
from a single bullet, small shell or
shrapnel fragment, without explosive
effect of high velocity missile,
residuals of debridement, or prolonged
infection. (ii) History and complaint.
Service department record or other
evidence of in-service treatment for the
wound. Record of consistent complaint of
one or more of the cardinal signs and
symptoms of muscle disability as defined
in paragraph (c) of this section,
particularly lowered threshold of fatigue
after average use, affecting the
particular functions controlled by the
injured muscles. (iii) Objective
findings. Entrance and (if present) exit
scars, small or linear, indicating short
track of missile through muscle tissue.
Some loss of deep fascia or muscle
substance or impairment of muscle tonus
and loss of power or lowered threshold of
fatigue when compared to the sound side.
(3) Moderately severe disability of
muscles. (i) Type of injury. Through
and through or deep penetrating wound by
small high velocity missile or large low-
velocity missile, with debridement,
prolonged infection, or sloughing of soft
parts, and intermuscular scarring.
(ii) History and complaint. Service
department record or other evidence
showing hospitalization for a prolonged
period for treatment of wound. Record of
consistent complaint of cardinal signs
and symptoms of muscle disability as
defined in paragraph (c) of this section
and, if present, evidence of inability to
keep up with work requirements. (iii)
Objective findings. Entrance and (if
present) exit scars indicating track of
missile through one or more muscle
groups. Indications on palpation of loss
of deep fascia, muscle substance, or
normal firm resistance of muscles
compared with sound side. Tests of
strength and endurance compared with
sound side demonstrate positive evidence
of impairment.
(4) Severe disability of muscles. (i)
Type of injury. Through and through or
deep penetrating wound due to high-
velocity missile, or large or multiple
low velocity missiles, or with shattering
bone fracture or open comminuted fracture
with extensive debridement, prolonged
infection, or sloughing of soft parts,
intermuscular binding and scarring. (ii)
History and complaint. Service
department record or other evidence
showing hospitalization for a prolonged
period for treatment of wound. Record
of consistent complaint of cardinal signs
and symptoms of muscle disability as
defined in paragraph (c) of this section,
worse than those shown for moderately
severe muscle injuries, and, if present,
evidence of inability to keep up with
work requirements. (iii) Objective
findings. Ragged, depressed and adherent
scars indicating wide damage to muscle
groups in missile track. Palpation shows
loss of deep fascia or muscle substance,
or soft flabby muscles in wound area.
Muscles swell and harden abnormally in
contraction. Tests of strength,
endurance, or coordinated movements
compared with the corresponding muscles
of the uninjured side indicate severe
impairment of function. If present, the
following are also signs of severe muscle
disability: (A) X-ray evidence of minute
multiple scattered foreign bodies
indicating intermuscular trauma and
explosive effect of the missile. (B)
Adhesion of scar to one of the long
bones, scapula, pelvic bones, sacrum or
vertebrae, with epithelial sealing over
the bone rather than true skin covering
in an area where bone is normally
protected by muscle. (C) Diminished
muscle excitability to pulsed electrical
current in electrodiagnostic tests.
(D) Visible or measurable atrophy. (E)
Adaptive contraction of an opposing group
of muscles. (F) Atrophy of muscle groups
not in the track of the missile,
particularly of the trapezius and
serratus in wounds of the shoulder
girdle. (G) Induration or atrophy of an
entire muscle following simple piercing
by a projectile.
38 C.F.R. § 4.56(d), as amended at 62 Fed. Reg. 30235 (June
3, 1997).
38 C.F.R. § 4.73, Diagnostic Code 5301 (1998) contemplates
injuries to Muscle Group I, the extrinsic muscles of the
shoulder girdle (trapezius, levator scapulae and serratus)
controlling upward rotation of the scapula or elevation of
the arm above shoulder level. The rating provision provides
that a 10 percent rating is warranted for moderate
disability, a 30 percent evaluation is warranted for
moderately severe muscle injury of the major extremity, and a
40 percent evaluation is warranted for severe disablement of
the major extremity. Id.
38 C.F.R. § 4.73, Diagnostic Code 5320 (1998) contemplates
injuries to Muscle Group XX, the cervical and thoracic spinal
muscles, sacrospinalis. The rating provision provides that a
10 percent evaluation is warranted for moderate impairment, a
20 percent evaluation is warranted for moderately severe
impairment, and a 40 percent evaluation is warranted for
severe impairment. Id.
Prior to July 3, 1997, the criteria for Diagnostic Codes 5301
and 5320 were the same. 38 C.F.R. § 4.73, Diagnostic Codes
5301, 5320 (1996).
III. Analysis
In this case, the veteran's shell fragment wounds of the left
shoulder and upper back has been evaluated as 10 percent
disabling under Diagnostic Code 7804. As noted above,
Diagnostic Code 7804 allows a 10 percent evaluation for scars
which are poorly nourished with repeated ulceration, or which
are tender and painful on objective demonstration.
38 C.F.R. § 4.118, Diagnostic Codes 7803, 7804. Because the
veteran's shell fragment wound scarring of the left shoulder
and upper back are productive of tenderness and pain, the
Board finds that a 10 percent evaluation in this regard is
proper. It is also noted that a 10 percent rating is the
maximum rating percentage allowable under the aforementioned
schedular provisions. Thus, entitlement to an increased
rating in excess of 10 percent for the scarring of the left
shoulder and upper back is prohibited. Id.
Nevertheless, the Court has held that the Board is required
to consider a claim under all applicable provisions of law
and regulation whether or not the claimant specifically
raises the applicable provision. Schafrath v. Derwinski,
1 Vet. App. 589, 592-93 (1991). As such, the Board was
obligated to consider other applicable provisions of
38 C.F.R. § Part 4. As discussed below, after reviewing
other pertinent provisions, the Board finds that entitlement
to an increased evaluation in excess of 10 percent is not
warranted.
In this regard, the Board finds that entitlement to an
increased evaluation in excess of 10 percent is not warranted
under Diagnostic Codes 5201, 5202, and 5203. The clinical
data is devoid of any finding showing associated malunion of
the clavicle or scapula or associated malunion of the humerus
causing moderate deformity. The record also fails to show
limitation of motion of the arm at the shoulder level.
38 C.F.R. § 4.71a, Diagnostic Codes 5201, 5202, 5203. By
history and currently, range of motion of the left arm has
been good, see 38 C.F.R. § 4.71, Plate I, and laboratory
findings do not reflect any evidence of malunion of the left
clavicle, scapula or humerus. On recent examination, flexion
was to 178 degrees with abduction to 180 degrees and
extension to 65 degrees. In addition, X-ray findings
revealed no evidence of acute fracture or dislocation and the
left humeral head was appropriately seated within the glenoid
fossa. As such, the requisite criteria for an increased
rating in excess of 10 percent under the aforementioned
schedular provisions have not been met. Id.
In addition, when applying the old and new muscle injury
criteria, entitlement to an increased evaluation in excess of
10 percent is not warranted under Diagnostic Codes 5301 and
5320. Indeed, the criteria under 38 C.F.R. § 4.56 reflect
contemplation of actual injury to muscle structure such as
that caused by a gunshot or shrapnel wound. Nevertheless, in
this case, the veteran's service-connected disability,
although involving some insignificant tissue loss, is clearly
not the result of any through-and-through wound or injury
involving muscle penetration. Further, although tenderness
and pain of the left shoulder and upper back is present, the
shell fragment wound of the left shoulder and upper back
disability is not productive of moderate or moderately severe
impairment under Muscle Group I or Muscle Group XX. See
generally, 38 C.F.R. § 4.73, Diagnostic Codes 5301, 5320.
Again, on recent clinical evaluation, range of motion of the
left shoulder was good and strength of the left upper
extremity was good. Evidence of atrophy of the deltoid was
absent and any soft tissue loss that the veteran had was so
minimal that it could not be quantitated. The impression was
multiple fragment wounds of the thoracic spine and neck
without neurological loss and with minimal muscular loss and
the examiner opined that there were no complications
associated with the veteran's wounds. Here, the record is
devoid of findings showing loss of power or lowered threshold
of fatigue when compared with the right side or indications
on palpation of loss of deep fascia, muscle substance, or
normal firm resistance of muscles when compared with the
right side. The veteran's strength and endurance is normal.
Considering the foregoing, the objective evidence fails to
demonstrate evidence of moderate or moderately severe
impairment of either Muscle Group I or Muscle Group XX.
Accordingly, an increased evaluation in excess of 10 percent
in this regard is not warranted. 38 C.F.R. §§ 4.7, 4.73,
Diagnostic Codes 5301, 5320.
The veteran's complaints of pain of the left shoulder and
upper back and objective findings of pain and tenderness are
acknowledged. Functional loss due to pain, supported by
adequate pathology, is recognized as resulting in disability.
See DeLuca v. Brown, 8 Vet. App. 202 (1995);
38 C.F.R. §§ 4.10, 4.40. In this case, however, in spite of
the positive findings of pain and tenderness, clinical
findings do not show evidence of weakened movement,
diminishment of excursion, strength, speed, coordination, and
endurance. The veteran has good range of motion of the left
shoulder with good strength of the left upper extremity.
Atrophy of the deltoid is absent as well. Moreover, in 1998,
the examiner stated as far as he could see there were no
complications involving the service-connected wounds. There
was no evidence of infection, old or new, and no evidence of
weakened motion, fatigability, and incoordination
attributable to the veteran's injuries. Regarding the
veteran's complaints of pain, the examiner added no doubt the
veteran may experience minor discomfort, but there were no
objective manifestations to demonstrate this. The veteran
was very robust and demonstrative. In view of the foregoing,
clinical findings show that the veteran's pain and tenderness
is not productive of an increased impairment. Section 4.40
does not provide for a separate rating for pain, but provides
for an additional rating in conjunction with applicable
rating criteria, Spurgeon v. Brown, 10 Vet. App. 194, 196
(1997). Under the current Diagnostic Code 7804, the
tenderness and pain from the scarring are already
contemplated in the 10 percent rating. The recent clinical
evidence is not demonstrative of functional impairment as a
result of pain. Thus, a rating in excess of the 10 percent
assigned is not warranted on this basis.
Further, in addition to considering the application of
alternate diagnostic codes, the Board has also considered
whether any separate disability evaluation is warranted in
this case. Here the Board notes that pyramiding, that is the
evaluation of the same disability, or the same manifestation
of a disability, under different diagnostic codes, is to be
avoided when rating a veteran's service-connected
disabilities. 38 C.F.R. § 4.14 (1998). It is possible for a
veteran to have separate and distinct manifestations from the
same injury which would permit rating under several
diagnostic codes. The critical element in permitting the
assignment of several ratings under various diagnostic codes
is that none of the symptomatology for any one of the
conditions is duplicative or overlapping with the
symptomatology of the other condition. See Esteban v. Brown,
6 Vet. App. 259, 261-62 (1994).
The Board also acknowledges the veteran's complaints of
experiencing tremors of the left hand and that he relates
that symptom to his service-connected disability. In this
regard, the Board stresses that in August 1995, B.E.L., M.D.,
stated that the veteran's tremor of the hand appeared to be
an attention tremor and a tremor of age. The physician did
not relate the veteran's tremor disability to his service-
connected shell fragment wounds of the left shoulder and
upper back and no other competent evidence of record
attributes the tremor of the hand to the service-connected
disability. In the instant case, the veteran's left shoulder
and left upper back scars are recognized as producing
tenderness and pain on objective examination. With regard to
his service-connected disability, the veteran has not
evidenced any separate or distinct symptomatology such as
neurologic impairment, muscle damage or limitation of motion
so as to warrant the assignment of a separate evaluation
under any applicable diagnostic code. See 38 C.F.R. § 4.14.
The pertinent provisions of 38 C.F.R. Parts 3 and 4,
including 38 C.F.R. § 3.321 (1998), have been considered. In
an exceptional case, where the schedular evaluations are
found to be inadequate, the Chief Benefits Director or the
Director, Compensation and Pension Service, upon field
station submission, is authorized to approve an extra-
schedular evaluation commensurate with the average earning
capacity impairment due exclusively to the service-connected
disability. 38 C.F.R. § 3.321(b)(1). However, the Board is
not required to discuss the possible application of 38 C.F.R.
§ 3.321(b)(1) when there is no evidence of an exceptional
disability picture. Shipwash v. Brown, 8 Vet. App. 218, 227
(1995). In this case, there is no evidence of frequent
hospitalization or marked interference with employment that
is exceptional so as to preclude the use of the regular
rating criteria. In fact, on recent examination the examiner
wrote the veteran's ability to perform average employment
would be normal while keeping in mind that he is 78 years
old. The examiner also wrote that the veteran incurred
fragment wounds over 54 years before and they have been
stable over 53 years and caused no significant impairment.
Therefore, an increased evaluation on an extra-schedular
basis is not warranted. See Floyd v. Brown, 9 Vet. App. 88
(1996).
ORDER
A disability evaluation in excess of 10 percent for shell
fragment wounds of the left shoulder and left upper back,
with scars is denied.
M. Sabulsky
Member, Board of Veterans' Appeals